Court Rules Against Man Who Brandished Finger Gun

(Newser)
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Charles Smith's gun may have been fake, but a New York Court of Appeals ruling against him is very real. Per the Wall Street Journal, the court decided Tuesday to retain Smith's conviction of attempted first-degree robbery instead of reducing the charge, even though it was Smith's hand, not a firearm, under his hoodie when he told a teller at a Queens check-cashing store he had a gun and demanded money. The court says that, based on an interpretation of New York's penal law regarding robbery, the teller reasonably could have thought Smith really had a gun, warranting the higher charge. To bolster its decision for this 2011 case, the court cited a previous 1989 case it had ruled on in which it said the ball was in the defendant's court to prove there was no gun, the New York Law Journal reports. (Read more weird crimes stories.)

He should be charged, but not first degree due to technically he did not have a deadly weapon. Laws have specifics for a reason. They need to be followed exactly. The prosecution holds the responsibility to prove there was a gun not the defense to prove there wasn't. Do we really want to give away the burden of proof? He should be charged with the most he can from the circumstances, but not more. Don't like it, then change the law. The law semantics need to be changed to not only include if armed, but if one perpetuates the idea that he is armed and threatens or include another category covering that situation. It is not the same thing and law is nuanced enough to determine between crime of passion, insanity, premeditation and intent. Robbery laws should cover the event of pretending to have weapons. Bomb threats and actual bombing are under different designations. If we start allowing for loose interpretation or then what is the point of specific laws. A robbery charge is elevated to first degree robbery when the victim or someone else not involved in the crime is seriously injured. First degree robbery may also take place if the perpetrator is armed with a deadly weapon and threatens to use it against the victim.